Gauging the Payment Halakhot of a Sho'el

This shiur is
dedicated by Mr and Mrs Alan Kravitz on behalf of Elie
Kravitz

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Lecture #05: Gauging the Payment Halakhot of
aSho'el

The previous lecture
discussed the nature of a shoels obligation to compensate for a
borrowed item if it is accidentally damaged.Is this expanded coverage merely the
product of the shoels self-obligation in recognition of the unlimited
utility he has received? Or does the shoel achieve a quasi-owner status
and absorb the loss, just as a true owner would in the case of accidental loss?
We identified several Rishonim who invoked the partial owner status of a
shoel as the source of his obligations.

This question may
impact several interesting halakhot which govern a shoel.One question surrounds the manner in
which a shoel arrangement is launched.From what point onward is a
shoel obligated to cover payments?This question was already addressed by the Amoraim, and three
distinct positions were asserted, two of which will be analyzed.

Based on a
mishna in Bava Metzia (98b), Rav depicts a situation in which a
shoel requests that the owner dispatch his animal to the reshut of a
sho'el under supervision of a child. Whether or not the animal actually arrives,
Rav claims that the shoel assumes responsibility for the animal as soon
as it is sent by the owner upon the request of the shoel.This payment arrangement may suggest
that a shoel must pay independent of any partial ownership status; it
would be difficult to imagine him achieving such status before he actually takes
control of the item and accepts it into his possession.If Rav is willing to obligate the
shoel from an earlier stage, it may indicate that the shoels
obligations are unrelated to his status as owner, if that status exists at
all.

Tosafot sense the
challenge of obligating a shoel prior to his receiving actual possession
of the item.Tosafot provide two
answers. In the first solution, Ravs halakha only applies if the animal
exited the owners reshut DIRECTLY INTO A LEGAL ZONE OF THE
SHOEL.Only in an instance
in which a shoel actually performs a kinyan do his obligations
begin.This adjustment of Ravs
chiddush may be an attempt to link the shoels obligations to his
partial ownership status.

However, in their
final answer, Tosafot claim that even if the animal were to exit directly into a
public domain, in which case the shoel cannot and has not performed an
act of kinyan, the shoel is still obligated to render
payment.Taking Rav literally may
be based on severing the shoels payment obligations from any ownership
status.

The gemara
subsequently cites a dissenting opinion. R. Elazar claims that just as the
Chakhamim established the concept of kinyan meshikhah to transfer
legal ownership of portable items, they similarly instituted meshikha to
affect the start of a shoel arrangement.Meshikha, physically moving an
item into private property, is the selected manner to perform a kinyan
act upon most portable items.R.
Elazar appears to claim that the shoels obligations only begin once he
has executed an act of meshikha.If accepted at face value, this may affirm that to be obligated to pay, a
shoel must first perform an act of kinyan similar to the act that
a purchaser performs.Not all
Rishonim accepted the simple reading of R. Elazars statement,
however.For example, Tosafot
(Bava Metzia 99a) claim that even according to R. Elazar, a
shoels payment obligations begin well before he executes an act of
meshikha.The
meshikha is only necessary to prevent the owner from revoking the terms
of the agreement.Tosafot were
unwilling to take R. Elazars statement at face value because this reading would
highlight the role of the owner status in obligating the shoel.

Another fascinating
question surrounds the possibility that a shoel might be obligated to
pay even though he didnt formally reach an agreement with the owner.If the shoels obligation stems
from his agreement to pay, it would be difficult to obligate him in the absence
of such formal negotiations.However, if the shoels responsibilities are driven by his use of
the item, a situation may arise in which the shoel benefits EVEN WITHOUT
FORMAL AGREEMENT and he would still be obligated to pay.The gemara in Ketuvot
(34b) describes a person who borrowed an item as a formal shoel and
subsequently died.Since he had
secured utility of the item for a specific term, his children may continue using
the item even after their fathers death.The Rashba claims that although they may continue benefiting, they are
not obligated to pay because they never agreed to terms with the original
owner.In contrast, the Raavad
maintains that the children must compensate the owner for any losses, even if
they continue using the item.The
Raavad thus introduces a scenario of a shoel obligated to pay despite
never having agreed to terms with the owner.

Interestingly, the
Rambam (HilkhotSheeilahU-Pikadon 2:11) describes
a similar scenario.He discusses a
woman who borrows an item and subsequently marries.If she informs her husband of the nature
of the borrowed item and he continues to utilize it, he can be obligated in
shoel payments  once again, even though he never agreed to terms with
the original owner.What makes this
instance fascinating is that the Raavad disagrees with the Rambam, making his
statements about the obligations of the orphans of a shoel that much
more interesting.

In any event, the
prospect of a shoel who has not formally agreed to terms but is
obligated based purely upon his utility of the item may reflect the fact that a
shoels obligations are based upon his quasi-owner status.If he utilizes an item without
permission, he is branded a ganav and must abide by the payment details
of a thief.Typically, he must
negotiate with the owner to achieve the right of utility.However, his payment obligations do not
stem for that agreement.Once he
agrees to borrow and has been granted utility, his obligations stem directly
from that utility and the partial owner status which it confers.The situations described by the
gemara in Ketuvot and the Rambam describe cases in which a person
enjoys legal utility without any formal authorization.Obligating these individuals to pay as a
shoel would confirms that the shoel payments stem from legal
utility and not from any specific agreement to pay.

It is intriguing to
consider a reverse situation.What
would happen if a shoel agreed to payment responsibilities but the type
of utility he derives is not the type which would brand him an owner?What happens if a shoel borrows
an item to use in a non-conventional fashion?The gemara in Bava Metzia
(96a) discusses a shoel who borrowed an item for bestiality purposes and
one who borrowed an animal to appear wealthy, without intention to actually work
with the item.The terms of the
gemaras question in this regard are unclear.Is the concern the non-conventional
nature of the benefit or the fact that it doesnt involve direct work and labor
with the borrowed item?Either way,
the gemaras question is surprising.Why would the type of benefit received
by the shoel interest us at all?The benefit is merely the trigger that causes the shoel to
personally obligate himself to cover losses.As long as he accepts the arrangement,
he should be obligated, regardless of the type of benefit!

Evidently, the
gemara believed that a shoels obligations stem from his status
as partial owner; the utility he receives brands him a partial owner and forces
him to absorb even accidental losses.Perhaps atypical uses that dont directly employ the item for labor do
not brand him as owner.Although he
receives benefits, in the absence of quasi-owner status, he may not be obligated
to pay.